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Judicial Determination of Compensation for Arbitrary Land Acquisition in the Kottayam Corridor Project: Ensuring Fair Remuneration under LARR Act 2013: Kerala High Court

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Judicial Determination of Compensation for Arbitrary Land Acquisition in the Kottayam Corridor Project: Ensuring Fair Remuneration under LARR Act 2013: Kerala High Court

Case title: R. ASOKAN & ORS VS State of Kerala & ORS
Case no.: W.P. (C) NO.26234 of 2023
Dated on: 19th April 2024
Quorum: Justice Hon’ble Mr. Justice Viju Abraham.

FACTS OF THE CASE
The writ petition is filed seeking to declare that the action on the part of the respondents in acquiring the properties of the petitioner for the ‘Kottayam Corridor Project’ without following due process of law and without payment of compensation amount is arbitrary, illegal and violative of the fundamental rights and constitutional rights guaranteed to the petitioner under Articles 14,19,21 and 300A of the constitution of India and for other consequential reliefs. Petitioners are absolute owners in possession and enjoyment of different extents of land in Nattakam and Panachikkadu Village in Kottayam District, as is evident from Exts.P1 to P4. The 1st respondent formulated a project by the name ‘Kottayam Development Corridor’ as part of a larger proposal for the development and expansion of the town. The 1st respondent after realizing that such project would require full co-operation and voluntary surrender by the land owners, called for a meeting on 08.10.2011 and on the basis of the promises and assurances given by the respondents that their demand for conversion of the remaining extent of land after the surrender, would be accepted, the petitioners granted permission for effecting construction in their property and surrendered. By Ext.P5 minutes of the meeting which was attended by the Minister and the other officials wherein it was reiterated that the land owners surrendering the lands will be permitted to convert an equal extent of their remaining lands and that exemption will be granted for effecting changes in the BTR records to enable change in the zoning for carrying out the project. While so, Ext.P6 order was issued by the 1st respondent stating that those land owners who have surrendered their whole extent of land will be allotted with Government land to an extent of 50% of the total surrendered land and such of the land owners who have surrendered a portion of their holdings will be allowed to convert paddy land (excluding wetland) to an extent of 50% of the land which they have surrendered to State Government. Petitioners submit that a conjoint reading of Exts.P5 and P6 would clearly denote that respondent No.1 reneged on its initial promise to the landowners and instead of allowing them to convert an equal extent of the surrendered property for construction, the new order stipulated that the landowners including the petitioners herein would only be allowed to convert 50% of the surrendered land for construction purposes. While contempt of court proceeding was pending, the 1st respondent issued Ext.P8 order holding that change of character of remaining lands of persons who have surrendered portions of their lands for road widening cannot be permitted as the same will be in violation of the provisions of the Kerala Conservation of Paddy Land and Wet Land Act, 2008.

CONTENTIONS OF THE APPELLANT
The Petitioners submitted that action on the part of the respondents in taking over possession of their property without taking recourse to acquisition proceedings or following due process of law is arbitrary and violative of the constitutional rights of the petitioners guaranteed under Article 300A of the Constitution. In the said circumstances, the petitioners have approached this Court. Despite the unilateral modification, petitioners decided not to raise any objection against Ext.P6. Even thereafter, no action was taken from the side of the 1st respondent. And further submitted that a conjoint reading of Exts.P5 and P6 would clearly denote that respondent No.1 reneged on its initial promise to the landowners and instead of allowing them to convert an equal extent of the surrendered property for construction, the new order stipulated that the landowners including the petitioners herein would only be allowed to convert 50% of the surrendered land for construction purposes.

CONTENTIONS OF THE RESPONDENTS
The respondent submitted that the petitioners have handed over lands for the Kottayam Corridor Project based on the G.O. (Rt)No.5925/2015/RD dated 13/11/2015, on condition that those who handover land for the Kottayam Corridor Project will be allowed to reclaim paddy land (except wetland) equal to 50% of the extent of land handed over to Government and those who handover their whole extent of land will be given land equal to 50% of the land transferred to Government but as per the G.O.(Rt.)4064/2018/RD dated 04.10.2018, the benefit earlier granted was cancelled and those persons who handed over land for Kottayam Corridor Project will be compensated for the exact extent of land they have actually surrendered at the rate of Market Value which was prevalent at the time of surrendering of their land by fixing land value as per LARR Act, 2013. It is also stated that in the case of the petitioners who have surrendered large extents of their land for the Kottayam Corridor Project, the benefit of G.O.(Rt.)4064/2018/RD dated 04/10/2018 will be made applicable and that those persons who handed over land to Kottayam Corridor Project would be compensated for the exact extent of land they have actually surrendered at the rate of Market Value which was prevalent at the time of surrendering of their land by fixing land value as per LARR Act, 2013 and the same will be done on the basis of negotiation or on payment the value of land at the time of taking possession of the land for the project.

ISSUES
• Whether respondent should initiate proceedings as per the LARR Act 2013 and pay compensation in accordance with the provisions of the said Act?

LEGAL PROVISIONS
Article 14 of the Indian Constitution 1950: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 300(A) of the Indian Constitution 1950: That a person can be deprived of his property only through an Act passed by the Parliament/State Legislature and not by executive order or fiat
Article 21 of the Indian Constitution 1950: Protection of Life and Personal Liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
44th Constitution Amendment Act: The government enacted the 44th Amendment Act in 1978 to reverse some modifications made under the 42 Amendment Act of 1976. It was passed to ensure that everyone has the same right to choose their type of government.

COURT’S ANALYSIS AND JUDGEMENT
The petitioners surrendered their land as early as in 2015 only on an assurance given, as evident from Ext.P5 that they would be permitted to convert equal extent of land that they have surrendered. Thereafter, the Government retracted from their promise and imposed a further condition as per Ext.P6. Even Ext.P6 was modified by the Government by Ext.P8 order wherein they have given away all the promises given to the petitioners and ordered that the land will be acquired as per the provisions of LARR Act, 2013 fixing the land value as on the date of surrender. The right to property was initially a fundamental right guaranteed as per the Constitution of India, by the 44th Constitution Amendment Act, the said right is no longer a fundamental right but it is still a constitutional right and a part of human right. Though democracy governed by the rule of law, the State cannot deprive a citizen without the sanction of law. The facts of the present case reveal that the land was taken over from the petitioners without paying any compensation solely based on the undertaking given to the petitioners regarding certain benefits to be extended to the petitioners as is evident from Ext P5 and P6, the Government has even retracted from the said promises and the present stand taken as per Ext P8 order and as per the counter affidavit is that they will be granted compensation as per LARR Act 2013 at the rate of market value which was prevalent at the time of surrendering of their land.
From 2015 onwards, the land is in possession of the Government and the same has been utilized for the ‘Kottayam Corridor Project’ without even paying any compensation till this date. In the said backdrop, the question to be considered is as to whether the stand taken by the Government that the petitioner will be paid compensation based on the value of the land as on the date of the surrender of the property is legally sustainable or not. Taking into consideration the fact that the property was taken over almost a decade back without giving a single penny towards compensation, the decision now taken to acquire the land fixing the land value as on the date of taking possession will cause serious hardships to the petitioners. I am of the opinion that the same will not be adequate compensation in view of the fact that petitioners will not be able to purchase now even a small extent of land which the petitioners could have purchased had the compensation amount been given at the time of taking possession itself. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There is no deprivation without due sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. Yet another aspect to be considered is that in the matter of taking over the property of a citizen, the authorities are bound to follow the procedure established by law. When the authorities are given power under the LARR Act 2013 to acquire the land, they are bound to follow the procedures prescribed therein, if not, the taking over of the property becomes arbitrary. On the basis of the same, the award will be passed in accordance with law, at any rate within an outer limit of 3 months from the date of receipt of a copy of the judgment and thereafter, the compensation amount/award amount shall be paid to the claimants/petitioners along with all statutory benefits within a further period of one month. Since the property has already been taken over and a road has been formed long back, it is made clear that the proceedings now directed to be initiated by this court as per the provisions of the LARR Act 2013 including issuance of Section 4 notification for the purpose of ascertaining the land value as on the date of the said notification and the passing of the award are intended only for fixing adequate compensation to be paid to the petitioners and therefore it is made clear that the proceedings shall be treated as deemed acquisition proceedings and only steps provided as per the LARR Act 2013 that are required for fixation of adequate compensation alone need be initiated by the respondents. The petitioners will be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired.

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Judgement Reviewed by – HARIRAGHAVA JP

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The Kerala High Court ruled that employer-issued circulars cannot restrict an employee’s ability to receive treatment from the hospital of their choice.

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Case Title: THE AREA MANAGER, FOOD CORPORATION OF INDIA Versus SHRI. P.T.RAJEEVAN

Case No: MFA (ECC) NO.52 OF 2018

Decided on: 30th April , 2024

Quorum: HON’BLE MR. JUSTICE G.GIRISH

Facts of the case

The respondent, Shri P.T. Rajeevan, worked as a head load worker for the appellant, Food Corporation of India (FCI). After an accident in 2014, he sustained injuries and had to pay ₹35,001 in hospital bills.

Issues

1. Can an employer’s circulars restrict an employee’s ability to receive medical care at a hospital of their choosing?

Legal Provisions

The issue concerned the interpretation of Employees’ Compensation Act, 1923, Section 4(2A), which addresses the payment of an employee’s actual medical expenses for treating injuries sustained while on the job.

Appellant’s Contentions

As mandated by Circular No. 10/2005, the respondent was not treated at one of the hospitals affiliated with FCI, hence the appellant, FCI, argued that the medical expenditures should not be paid.

Respondent’s Contentions

The respondent contended that rather than using the Employees’ Compensation Commissioner’s (ECC) figure of ₹20,000, the compensation ought to have been computed using his true monthly income of ₹29,500. In addition, he argued that, notwithstanding the employer’s guidelines, he was entitled to receive medical care from any facility of his choosing.

Court Analysis and Judgement

The Kerala High Court ruled that employer-issued circulars cannot restrict an employee’s ability to receive treatment from the hospital of their choice. The court noted that no circular could supersede the social welfare statute known as the Employees’ Compensation Act. The court determined that the appellant’s challenge to this award was without merit and affirmed the ECC’s decision to pay the medical expenditures.

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Judgement Analysis Written by – K.Immey Grace

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“Kerala High Court Directs Closure of Schools Without Playgrounds and Extra-Curricular Activities”

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Case title: Prakash N v. G.W.L.P. (Government Welfare Lower Primary) School & Ors.

Case no.: WP(C) No. 19170 of 2014

Order on: 11th April 2024

Quorum: Justice P.V.Kunhikrishnan

FACTS OF THE CASE

The petitioners, Prakash N and Rajani R, represented the Parent Teachers Association and the Managing Committee Member of the Government Welfare Lower Primary School, Thevayoor South, Pathanamthitta. They filed a writ petition seeking to restrain respondents 2 and 3 from constructing a water tank in the school ground without obtaining permission from the school authorities or higher authorities. The petitioners provided photographic evidence of ongoing construction activities in the playground of the school.

The court directed the State Government to formulate norms/guidelines within four months regarding the extent of playground necessary in each category of schools and the facilities required in school playgrounds. It also mandated that educational authorities ensure compliance and take stringent action, including closure of schools not adhering to these norms.

CONTENTIONS OF THE APPELLANT

The appellants, represented by their advocates, argued for the necessity of obtaining permission for construction within the school compound and emphasized the importance of preserving the playground space for educational and recreational activities.

CONTENTIONS OF THE RESPONDENTS

The respondents, represented by various government bodies and officials, argued against the petition, contesting the need for prior permission for the construction and presenting their justifications for the proposed water tank.

ISSUE –

  • Whether construction activities within the school compound require prior permission from educational authorities.
  • The significance of playgrounds in educational institutions and the legal obligations regarding their maintenance.

COURT’S ANALYSIS AND JUDGEMENT

The court emphasized the vital role of playgrounds in schools, highlighting their importance for holistic child development and educational enhancement. It referenced relevant provisions in the Kerala Education Rules (KER) and the Right of Children to Free and Compulsory Education Act, noting the absence of specific guidelines regarding playground size and facilities.

The court cited precedents and affiliation rules of educational boards like CBSE and CISCE, which clearly stipulate requirements for playground size and amenities. It expressed concern over the lack of similar regulations in Kerala’s education laws.

Consequently, the court directed the State Government to formulate norms/guidelines specifying the extent of playgrounds required for different types of schools and the facilities they should contain. It mandated strict enforcement, including potential school closures for non-compliance.

The judgment underscores the importance of playgrounds in educational institutions and calls for regulatory measures to ensure their proper maintenance and availability for students’ physical and recreational activities. It sets a precedent for the government to enact specific guidelines in line with educational standards and best practices.

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Judgement Reviewed by – Chiraag K A

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Compromise decree would be binding on the party even though if he has not signed on it : Kerala High Court.

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Case Title: Ashiya Ummal v. S.N. Sathy & ors.

Case No: RSA NO. 247 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A. BADHARUDEEN

Facts of the Case

S.N.Sathy, the original plaintiff, instituted the Suit for fixation of boundary, recovery of possession and consequential injunction. During pendency of the Suit, Compromise was entered into on 16.01.2019 and the signatories in the compromise are the plaintiff, her counsel, 5th defendant and the counsel for the whole defendants.

The learned counsel for the appellant/1st defendant assails the said compromise on the ground that the 1st defendant did not sign in the compromise and the same should not bind the 1st defendant. Therefore, the learned counsel pressed for setting aside the compromise decree passed in the above Suit, where the 1st defendant is not a signatory.

The learned counsel for the plaintiff submitted that in the compromise entered into between the parties, the signatories are the plaintiff and the 5th defendant, husband of the 1st defendant. It is also pointed out by the learned counsel for the plaintiff that even though the 1st defendant did not directly put signature in the compromise, the 1st defendant thereafter acted upon the same and received benefit out of the same. Therefore, the 1st defendant accepted the compromise, the 1st defendant could not succeed in opposing the finality of the compromise and this appeal must fail.

Issues

  1. Whether challenge against a compromise decree is permissible by way of an appeal? If so, on what grounds?
  2. What is the legal effect of a compromise where a party did not sign?
  3. If a party, who did not sign a compromise, if acts upon the same subsequently, can he avoid the compromise decree thereafter merely on the ground that he did not put his signature in the compromise?

Legal Provisions

Under Order XLIII Rule 1A (2) in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. At the same time, Section 96(3) of the C.P.C. provides that, no appeal shall lie from a decree passed by the court with the consent of parties. An apparent conflict between the two provisions of the Code, viz. S.96(3) C.P.C. which bars an appeal against a compromise decree and Order XLIII, Rule 1A(2) C.P.C. which allows an appellant to question the validity of a compromise by preferring an appeal against a decree passed on the basis of such compromise, looms large.

Order XXIII Rule 3 C.P.C. reveals the mode of recording compromise. After amending, Rule 3 of Order XXIII C.P.C., it was inserted a requirement that all lawful agreements or compromise would be in writing and signed by the parties, to enable the court to satisfy itself about the authenticity of the compromise/agreement. As per the proviso, where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. A new Rule 3A was also inserted in Order XXIII in the C.P.C. by the same Amendment Act which bars institution of a separate suit to challenge a decree passed on the basis of a compromise, on the ground that such compromise is not lawful.

Court’s analysis and decision

The Hon’ble High Court of Kerala has dealt with first issue while referring to the following judgements. The Supreme Court in Banwari Lal v. Smt.Chando Devi [1993 (1) SCC 581]: [AIR 1993 SC 1139] held that a party challenging a compromise decree can file an application under the proviso to Order XXIII, Rule 3 C.P.C. before the same court by which the said decree was passed or an appeal under S.96(1) C.P.C. wherein it would be open for a party to question the validity of the compromise in view of Order. The Apex Court in H.S. Goutham v. Rama Murthy and another [2021 (5) SCC 241: AIR OnLine 2021 SC 269], held that an appeal against a compromise decree in terms of Order XLIII, Rule 1A C.P.C. was maintainable.

Neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by R.3A of O.23 of CPC. As such a right has been given under R.1A(2) of 0.43 of CPC to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. S.96(3) of the Code shall not be a bar to such an appeal because S.96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.

The Hon’ble High Court of Kerala has combinedly dealt with second and third issues. There is no dispute that the 1st defendant is not a signatory in the compromise and on her behalf her lawyer signed. At the same time, the husband of the 1st defendant (5th defendant) also signed in the compromise. In this case, after passing decree in terms of the compromise as on 16.1.2019, subsequently the 1st defendant filed an affidavit before the Munsiff Court on 02.03.2019 and claimed the amount in terms of clause 5 of the compromise petition. Reading the affidavit, it is vivid that in paragraph No.2 thereof, the 1st defendant affirmed that “the said case was settled in terms of compromise petition dated 16.1.2019”. In paragraph No.3 it is affirmed by the 1st defendant that “as per clause 5 of the said compromise petition, the parties are directed to file separate statements of accounts.”.

The 5th defendant also filed an affidavit as Annexure-R1.C, in terms of the compromise. On perusal of Annexure-R1.D affidavit filed by the 1st defendant, it is emphatically clear that Ashiya Ummal agreed and consented the compromise and subsequently acted upon the same though she did not sign the compromise.

It has to be held that even though the 1st defendant did not sign the compromise, she had given consent to his lawyer to effectuate the compromise and she acted upon the same in view of Annexure R1.D affidavit. Therefore, the appellant herein who had given consent and acted upon the compromise cannot withdraw the consent thereafter and accordingly, it is held that the compromise shall bind the 1st defendant/appellant.

This Second Appeal is found to be meritless and is liable to be dismissed.

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Written by- Afshan Ahmad

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S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

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Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. Maximum period of detention-The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.”

After the amendment in 2014, the Section 12 of the KAAPA reads as:

“12. Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

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Written by- Afshan Ahmad

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